The Sovereignty of Native Americans

Racial Assumptions. Several important Supreme Court decisions centered on the status of Native Americans in the United States. Two types of conflicts were particularly significant. The first involved Native Americans’ relationship to the land. Whites claiming to have purchased land from Indians found themselves in conflict with whites claiming to have been granted the same land by a state government. In litigation to determine the title, the fundamental question was whether Native Americans owned the land on which they lived, since ownership of land included the right to convey it. A second important controversy involved the autonomy of Native Americans who lived within the boundaries of a state. Could the state government assert jurisdiction over these people? Were Indian tribes in effect independent nations that governed themselves? Supreme Court decisions on these issues reflected racial stereotypes about Native Americans, whom whites commonly regarded as savage, indolent, and childlike. Some whites argued passionately that Indians had the capacity to adopt the ways of “civilized” Americans of European descent, while others maintained equally firmly that Indians could never be assimilated into the United States and would have to be “removed” to distant lands. Neither side contemplated the possibility of according Native Americans respect as separate peoples with distinct cultures.

Land Title. Disputes over land demonstrated the ways in which racial assumptions informed legal reasoning. The ownership rights of Indians had of course become a significant question shortly after Columbus encountered the New World and its inhabitants, and several Supreme Court cases touched on the issue before 1815. The subject received its most authoritative American judicial exposition, however, in Johnson v. McIntosh (1819), in which the plaintiff’s father had purchased a tract of land from the Piankeshaw Indians in 1775, nine years before the state of Virginia granted the same tract of land to the defendant. Explaining the Court’s decision in favor of the defendant, Chief JusticeJohn Marshall observed that Europeans had in effect conquered the native occupants of the country. But the defect in Indian title, he indicated, resulted not so much from sheer power relations as from “the character and habits of the people whose rights have been wrested away from them.” To recognize the Piankeshaws and other tribes as landowners would be “to leave the country a wilderness.” If the conquered peoples had been different, the chief justice suggested, they might have retained more property rights. But because Native Americans were “a people with whom it was impossible to mix,” the principles that “ought to regulate …the relations between conqueror and conquered” were “incapable of application.” As a result, American law would regard Indians not as owners but merely as occupants of the land they possessed, unable to transfer their interests and dependent on the federal government for permission to continue their occupancy.

Autonomy Attacked. In the decade after Johnson V. McIntosh restricted the power of Indians to sell the land they occupied, federal and state governments put new pressures on Indians who sought to remain in possession of their land. The federal government had for some time sought removal of Native Americans to the territories west of the Mississippi River. Under a land allotment policy adopted in 1816, however, Indians who “demonstrated their capacity for civilization by establishing farms” were entitled to hold their lands. This pressure prompted an upheaval among Cherokees, who not only proved their adeptness at agriculture but also developed an alphabet and reconsidered tribal customs; in 1827 the Cherokees adopted a constitution and declared themselves an independent nation. The state of Georgia responded by asserting its jurisdiction over Native Americans living within the state boundaries. Like laws adopted in Alabama, Mississippi, and Tennessee, the legislation imposed taxes, required militia service, and established criminal sanctions for enforcement of Cherokee law. Under Andrew Jackson, an aggressive enemy of Native Americans, the federal government backed the extension of state authority as part of the removal bill passed by Congress in May 1830. Meanwhile, the workings of the allotment policy and infringements from state land distributions caused Cherokees and other Indians to lose property through fraud and harassment, undermining their attempts to avoid removal through a strategy of acculturation.

Cherokee Nation v. Georgia. Following passage of Jackson’s removal bill, the Cherokees began planning a legal campaign to prevent the assertion of jurisdiction by the state of Georgia. The Cherokees retained as their lawyer the capable William Wirt, who had served as attorney general in the Monroe and Adams administrations and would run against Jackson for president in 1832. In Cherokee Nation v. Georgia (1831) Wirt called on the Supreme Court to review the Georgia statutes pursuant to its power to consider suits between a state and a foreign country, pointing to the long record of treaties as evidence that American law regarded Indian tribes as separate nations. The Court, however, concluded that Indian tribes were not foreign states for purposes of federal jurisdiction but were instead “domestic dependent nations.”Chief Justice Marshall noted that the Constitution authorized Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” suggesting that Indian tribes were not foreign nations. He also pointed out that Native Americans and their lands were “so completely under the sovereignty and dominion of the United States” that they could not be considered independent political entities. Finally, he invoked commonplace racial assumptions about the “habits and usages of the Indians” to conclude that the framers of the Constitution did not expect Native Americans to use the federal courts. William Johnson’s concurring opinion argued similarly, though more stridently, that “there are strong reasons for doubting the applicability of the epithet state, to a people so low in the grade of organized society as our Indian tribes most generally are”; he regarded Indians as “nothing more than wandering hordes, held together only by ties of blood and habit, and having neither laws or government, beyond what is required in a savage state.” Once again, the rights of Native Americans turned not only on the letter of the law but also on assumptions about racial character.

THE CHEROKEES AND THE PROMISE OF LAW

Cherokee acceptance of the federal initiative to “civilize” Native Americans resulted in a profound legal transformation of their traditional society, culminating in 1827 with adoption of a written constitution on the, pattern of that of the United States. When the Jackson administration and the state of Georgia nonetheless intensified the pressure for removal, editor Elias Boudinot of the Cherokee Phoenix expressed the tribe’s frustrated sense of betrayal on 17 June 1829:

Why were we not told long ago, that we could not be permitted to establish a government within the limits of any state? Then we could have borne the disappointment much easier than now. The pretext for Georgia to extend her jurisdiction over the Cherokees has always existed. The Cherokees have always had a government of their own. Nothing, however, was said when we were governed by savage laws, when the abominable law of retaliation carried death in our midst, when it was a lawful act to shed the blood of a person charged with witchcraft, when a brother could kill a brother with impunity, or an innocent man suffer for an offending relative. At that time it might have been a matter of charity to have extended over us the mantle of Christian laws & regulations. But how happens it now, after being fostered by the U. States, and advised by great and good men to establish a government of regular law; when the aid and protection of the General Government have been pledged to us; when we, as dutiful ’children’ of the President, have followed his instructions and advice, and have established for ourselves a government of regular law; when everything looks so promising around us, that a storm is raised by the extension of tyrannical and unchristian laws, which threatens to blast all our rising hopes and expectations?

Worcester v. Georgia. Because the Court concluded that it did not have authority to hear Cherokee Nation v. Georgia, it did not consider the validity of the Georgia laws asserting jurisdiction over Native Americans. Chief Justice Marshall’s opinion hinted, however, that the laws would be struck down in a case that fell within the Court’s jurisdiction, and the Cherokees and Wirt lost no time in presenting their arguments in a different form. Missionaries Samuel Worcester and Elizur Butler, sentenced in 1831 to four years in prison for violating a state law that prohibited whites from living in Cherokee territory without a license, appealed their convictions to the Supreme Court Writing for the majority in Worcester v. Georgia (1832), Marshall combined his sympathy for the Cherokees with his zealous protection of federal power against state encroachment and concluded that the federal government had exclusive constitutional authority over Indian affairs. The state of Georgia, which refused to participate in Cherokee Nation or Worcester, in turn announced that it would not abide by the Court’s decision. This presented a dilemma for President Andrew Jackson, whose anti-Indian prejudice was matched only by his devotion to the Union. If he enforced the Court’s decision, Jackson would weaken his campaign for Indian removal, but if he allowed Georgia to defy the Court he would undermine his position in the ongoing nullification controversy with the state of South Carolina. The predicament was resolved when Worcester and Butler accepted a pardon from the governor of Georgia in January 1833, ending the case and clearing the way for Jackson to ask Congress for approval to force South Carolina to comply with the federal tariff. But the Cherokee litigation campaign had failed in its effort to use the Constitution to defeat the greed and racism that would lead to the Trail of Tears.

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